Citation Nr: 21006569 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-27 264 DATE: February 4, 2021 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. For the period from May 14, 2019, entitlement to special monthly compensation (SMC) at the housebound rate is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas throughout the appeal period. 2. The Veteran meets the schedular requirements for TDIU during the entirety of the appeal period, and the evidence is at least in equipoise as to whether his service-connected PTSD is so severe as to preclude all forms of substantially gainful employment. 3. For the period from May 14, 2019, the Veteran is in receipt of TDIU based on a single disability and has additional disabilities independently ratable at 60 percent, separate and distinct from the disability on which TDIU is based and involving different bodily systems. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial 70 percent rating, and no more, for PTSD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3. 4.130, Diagnostic Code 9411. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.16. 3. For the period from May 14, 2019, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to March 1969. His decorations include the Combat Action Ribbon, the Republic of Vietnam Gallantry Cross with Palm and Frame, and the Vietnam Service Medal with two Bronze Stars. In January 2020, a virtual hearing was held before the undersigned Veterans Law Judge. This decision is being made under the “one-touch” program. A transcript of the hearing will be associated with the claims file at a later time. Additional evidence was received following the November 2017 supplemental statement of the case. To the extent it was submitted by the Veteran, automatic waiver applies. 38 U.S.C. § 7105(e). The Board acknowledges that VA examinations were also added. The Veteran is not prejudiced by consideration of this evidence given the dispositions herein. See June 2016 notice of disagreement (requesting a 100 percent schedular rating or TDIU). Entitlement to an initial rating greater than 50 percent for PTSD In October 2015, VA granted service connection for PTSD and assigned a 50 percent rating from April 29, 2011. Additional evidence was received within the one-year appeal period and the 50 percent rating was continued in February and June 2016. The Veteran disagreed with the rating and perfected this appeal. He contends that the assigned rating does not adequately reflect the severity of his disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. PTSD is evaluated pursuant to the General Rating Formula for Mental Disorders. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently explained, an evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed under the referenced diagnostic code are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Notably, the United States Court of Appeals for Veterans Claims (Court) has held that “the language of [38 C.F.R. § 4.130 ] indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In support of his claim, the Veteran submitted multiple statements from his VA psychiatrist, Dr. G.B. See statements dated in September 2013, October 2014, October 2015, and March 2016. Dr. G.B. indicated that the Veteran continued to suffer frequent intrusive recollections, nightmares and flashbacks. He also reported a sense of foreshortened future and persistent feelings of detachment from others. He experienced problems with hypervigilance, irritability, and concentration. Dr. G.B. indicated that these symptoms significantly impact his occupational and social functioning and render him unemployable. In subsequent statements dated in September 2016 and January 2017, Dr. G.B. indicated that the Veteran’s condition had worsened, and his medication had been increased. He noted near-continuous symptoms affecting the Veteran’s ability to function independently, appropriately and effectively. Further, the Veteran was unable to adapt to stressful circumstances and he had deficiencies in family relations, judgment, thinking and mood. He also experienced spatial disorientation and neglect of personal appearance and hygiene. Dr. G.B. again stated that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his PTSD. The Veteran also submitted statements from a private psychologist, Dr. L.L. See statements dated in June 2019 and May 2020. She indicated that she had been treating the Veteran and she concurred with Dr. G.B.’s opinion that an increase was warranted. She noted the Veteran was impaired in both occupational and social areas and continued with increased depression, irritability, and avoidance of social activities. He remained unemployable. The Veteran underwent several VA examinations throughout the appeal period. On VA examination in October 2015, symptoms were reported as anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Occupational and social impairment was summarized as reduced reliability and productivity. In a December 2015 addendum, the examiner stated that the Veteran would have moderate difficulty in his ability to secure and maintain substantially gainful employment in his normal occupational environment due to persistent PTSD symptoms. On VA examination in May 2016, the Veteran reported similar symptoms and the examiner again summarized the level of disability as occupational and social impairment with reduced reliability and productivity. On VA examination in January 2017, symptoms were listed as depressed mood, anxiety, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner stated that the PTSD symptoms were in the moderate range of dysfunction and did not preclude his ability to manage the responsibilities found in a full-time employment setting. Occupational and social impairment was described as reduced reliability and productivity. In a February 2017 statement, the Veteran reported that he is always on edge which takes a lot out of him both physically and mentally. He feels his life is shortened by this all moving forward and he has had thoughts of self-harm but would probably not because of his family. On VA examination in July 2019, the examiner summarized the Veteran’s level of occupational and social impairment as consistent with only a 10 percent rating. The Veteran’s symptoms, however, were reported as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and both difficulty and an inability to establish and maintain effective relationships. In an individual unemployability statement, the examiner stated that the Veteran has difficulty attending to or was easily distracted from the task at hand; has difficulty maintaining concentration and focus; has intrusive thoughts which interfere with his ability to stay focused; and his sleep was so disrupted that he would usually be fatigued at work, making concentration and focus on work assignments difficult. The Veteran most recently underwent a VA examination in July 2020. He reported active suicidal ideation with no intent or plan. Symptoms were listed as depressed mood, anxiety, disturbances of motivation and mood, and suicidal ideation. His level of disability was summarized as occupational and social impairment with deficiencies in most areas. As set forth, the Veteran has experienced varied PTSD symptoms throughout the appeal period and his level of occupational and social impairment has primarily been summarized as consistent with a 50 percent or 70 percent rating. Statements from treating providers indicate that his symptoms have significant effects on occupational and social functioning. On review, the evidence is at least in equipoise as to whether his PTSD is manifested by occupational and social impairment with deficiencies in most areas throughout the appeal period. Resolving reasonable doubt in his favor, an initial 70 percent rating is granted. 38 C.F.R. § 4.3. A 100 percent rating, however, is not warranted at any time during the appeal period as the disability picture does not more nearly approximate total occupational and social impairment. Review of mental status evaluations on VA examinations and in outpatient records does not show gross impairment in thought processes or communication; peristent delusions or hallucinations; or grossly inappropriate behavior. While suicidal ideation was noted in the Veteran’s February 2017 statement and on recent examination, outpatient records generally indicate an absence of suicidal or homicidal ideation and there is no indication of persistent danger of hurting self or others. The Veteran can perform the activities of daily living and he is not disoriented to time or place. Further, while he is shown to have some difficulties with relationships, total social impairment is not shown. VA records document a long-term marriage and indicate that he maintains relationships with his family, to include his siblings, children, and grandchildren. Entitlement to TDIU In February and June 2016, VA denied entitlement to TDIU. The Veteran disagreed with the decision and perfected this appeal. He contends that he is unemployable due to PTSD. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In considering entitlement to individual unemployability, the pertinent inquiry is whether service-connected disabilities individually or in combination are of sufficient severity to produce unemployability - not whether a Veteran is unemployable solely due to his service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is currently service connected for PTSD (increased to an initial 70 percent rating herein); obstructive sleep apnea (50 percent from May 14, 2019); tinnitus (10 percent from May 12, 2008); and right ear hearing loss (noncompensable from May 12, 2008). Relevant to the appeal period, the combined rating is now calculated as 70 percent from April 29, 2011; and 90 percent from May 14, 2019. See 38 C.F.R. § 4.25. The Veteran meets the schedular requirements for TDIU during the entirety of the appeal period. Evidence of record shows the Veteran last worked full-time in 2008. In a February 2017 statement, he reported that he was previously employed as a medical salesman, but he had only a high school (GED) education and did not have the skills to work in today’s environment. He further stated that his whole career had been in sales and his PTSD symptoms drastically impaired his ability to function independently. As set forth above, the record contains evidence both for and against the claim. That is, there is evidence that his PTSD causes moderate difficulty in employment but did not preclude full-time employment, and there is evidence indicating that his symptoms are so severe that he is unemployable. Considering the Veteran’s educational and occupational experience, the Board finds the evidence is at least in equipoise as to whether his service-connected PTSD is of such severity to preclude substantially gainful employment. Resolving reasonable doubt in his favor, TDIU is granted. 38 C.F.R. § 4.3. Entitlement to SMC at the housebound rate Considering the grant of TDIU herein, the record raises the issue of entitlement to SMC at the housebound rate. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011) (requiring the Board to consider SMC at the housebound rate if a veteran meets the requisite schedular criteria). SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). In this case, the award of TDIU is based on a single disability (PTSD). Additional service-connected disabilities are independently ratable at 60 percent effective May 14, 2019 (tinnitus at 10 percent, obstructive sleep apnea at 50 percent). These disabilities involve different body systems and thus, SMC at the housebound rate is warranted effective May 14, 2019. There is no basis for assigning SMC prior to this date. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.